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Do funds expire if protest bridges FY end/start?


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If you receive a protest near the end of the FY, and the award is delayed until the following FY, do you lose the prior year funds originally planned to be used? In other words, does the protest itself shift the bonafide need from one year to the following?

I have not dealt with a lot of protests, but I can't see how you could award a new contract after the FY rolls over, with 1 year money from the prior year.

Drew

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Jamaal:

That paragraph of the FAR starts with ..."with respect to any protest filed with the GAO, ..."

I think the articles you provided give me the details I need on agency level protests. The main difference is that for agency level protests, the agency must prove a "delay" occurred, in order to be able to use the funding originally committed. i.e. the protest delayed or prevented the agency from making an award or proceeding with the procurement.

Thanks for the assist!

Drew

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Drew:

Glad you got what you needed.

Could the offsetting commas identify the GAO statement as a nonessential element? https://owl.english.purdue.edu/owl/resource/607/05/

If the GAO statement was read out of the sentence it would make sense and be consistent with the statue (31 U.S.C. 1558) it implements.

FAR 33.102[c] In accordance with 31 U.S.C. 1558, with respect to any protest filed with the GAO, if the funds available to the agency for a contract at the time a protest is filed in connection with a solicitation...such funds shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest.

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Guest Vern Edwards

Look at the cited statute, 31 U.S.C. § 1558. (An agency-level protest is an "adminstrative procedure". A procedure for "a judicial remedy" is a protest to the COFC.)

(a) Notwithstanding section 1552 of this title or any other provision of law, funds available to an agency for obligation for a contract at the time a protest or other action referred to in subsection is filed in connection with a solicitation for, proposed award of, or award of such contract shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest or other action. A ruling is considered final on the date on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which a decision is rendered on such an appeal or request, whichever is later.

Subsection (a) applies with respect to—


(1) any protest filed under subchapter V of chapter 35 of this title; or

(2) an action commenced under administrative procedures or for a judicial remedy if—

(A)the action involves a challenge to—

(i) a solicitation for a contract;
(ii) a proposed award of a contract;
(iii) an award of a contract; or
(iv) the eligibility of an offeror or potential offeror for a contract or of the contractor awarded the contract; and

commencement of the action delays or prevents an executive agency from making an award of a contract or proceeding with a procurement.

See also the GAO Redbook, Ch. 5, Part E, pages 5-88 and 5-89.

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Jamaal: I'm not a lawyer but I think that the FAR language at 33.102 ( c ) is probably outdated with respect to current wording at 31 USC 1558. I added the bold italics to clarify what I think was the legislative action that updated §1558 to include more than GAO protests. I read somewhere else under Title 31 that the definition of a protest under "this Title" (Title 31) isn't limited to GAO protests but cant find it right now plus I don't know if that statement is applicable here.

31 U.S.C.
United States Code, 2010 Edition
Title 31 - MONEY AND FINANCE
SUBTITLE II - THE BUDGET PROCESS
CHAPTER 15 - APPROPRIATION ACCOUNTING
SUBCHAPTER IV - CLOSING ACCOUNTS
Sec. 1558 - Availability of funds following resolution of a formal protest or other challenge
From the U.S. Government Printing Office, www.gpo.gov §1558. Availability of funds following resolution of a formal protest or other challenge

(a ) Notwithstanding section 1552 of this title or any other provision of law, funds available to an agency for obligation for a contract at the time a protest or other action referred to in subsection ( b ) is filed in connection with a solicitation for, proposed award of, or award of such contract shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest or other action. A ruling is considered final on the date on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which a decision is rendered on such an appeal or request, whichever is later.

( b ) Subsection ( a ) applies with respect to—

(1) any protest filed under subchapter V of chapter 35 of this title; or

(2) an action commenced under administrative procedures or for a judicial remedy if—

(A) the action involves a challenge to—

(i) a solicitation for a contract;

(ii) a proposed award of a contract;

(iii) an award of a contract; or

(iv) the eligibility of an offeror or potential offeror for a contract or of the contractor awarded the contract; and


( B ) commencement of the action delays or prevents an executive agency from making an award of a contract or proceeding with a procurement.

(Added Pub. L. 101–189, div. A, title VIII, §813(a), Nov. 29, 1989, 103 Stat. 1494; amended Pub. L. 104–106, div. E, title LV, §5502(a), ( b ), Feb. 10, 1996, 110 Stat. 698, 699.)

Amendments

1996Pub. L. 104–106, §5502( b ), substituted “of a formal protest or other challenge” for “of a protest” in section catchline.

Subsec. (a). Pub. L. 104–106, §5502(a)(1), inserted “or other action referred to in subsection ( b )” after “time a protest”, substituted “100 days” for “90 working days”, and inserted “or other action” after “on the protest”.

Subsec. ( b ). Pub. L. 104–106, §5502(a)(2), added subsec. ( b ) and struck out former subsec. ( b ) which read as follows: “Subsection (a) applies with respect to any protest filed under subchapter V of chapter 35 of this title or under section 111(f) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759(f)).”

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, div. E, title LVII, Feb. 10, 1996, 110 Stat. 702.

Drew: Don't you have access to a lawyer in your organization who could answer your original question before asking here? I wouldn't expect an 1102 series employee to have to be proficient in legal research but FAR 33.102 ( c ) does at least address availability of appropriations due to GAO protests. Your lawyer should have been available to address your second question.

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Guest Vern Edwards

Drew doesn't need a bleeping lawyer for that question. (Most of them don't know all that much about funding issues.) Just do some research in appropriate materials. Always check the GAO Redbook when it comes to questions about funding. It answers most simple questions and many difficult ones.

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Vern, thanks for the reference to the GAO Redbook, Ch. 5, Part E, pages 5-88 and 5-89.

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By the way,in addition to FAR 33. 102 ( c ) appearing not being up to date, it doesn't appear to me like the 2004 version of the Redbook that I viewed on page 5-89 is up to date either. Paragraph ( a ) of Sec. 1558 doesn't reference "or other action referred to in subsection ( b )". The accompanying note 66 refers to an earlier version of paragraph ( a ) prior to being amended by PL 104-106.

And the paragraph below on 5-89 doesn't cover "other actions" described in the current paragraph ( b ) of Sec.1558: And I believe PL 104-106 removed the reference in paragraph ( b ) to 40 U.S.C. § 759.

This provision applies to protests filed with GAO, the contracting agency,or a court under 31 U.S.C. §§ 3552 and 3556, and to protests filed with the General Services Board of Contract Appeals, the contracting agency, or a court under 40 U.S.C. § 759 (f). 31 U.S.C. § 1558( b ).

While a good working knowledge of the Redbook is recommended and perhaps essential, this brings to mind questions concerning the appropriate use of available resources to the contracting officer or other contracting personnel before diving off into detailed research.

I would say that a reading of FAR 33.102 ( c ) may have provided an answer to the general question here had there been a GAO protest.

However, in addressing the second question that exceeded the coverage of the FAR regarding an agency protest, if an organization has a Finance and Accounting office and/or an attorney who is knowledgeable in appropriations law, why not use them? My perspective is from an organization which had such resources readily available. And, as I recall, when I was in the Air Force, my bases all had F&A offices, which I could call to ask various questions.

Since this type of contracting action would involve both other offices, why not use the resources of other members of the acquisition team, if available? There are many threads in this Forum, in which contracting personnel seem to be complaining that they don't have time to do a proper job, as it is - without researching questions that may be readily available from other team members, who will possibly be reviewing whatever the KO does anyway.

EDIT: Even though the Redbook appears to be out of date, it would answer both of Drew's questions.

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Oh yes. Here is another reference for DoD organizations:

DFAS-IN Regulation 37-1 Chapter 8

May 2014

080606. Protests. Per 31 U.S.C. 1558, funds available for obligation for a contract at the time a protest is filed in connection with a solicitation for, proposed award of, or award of a contract, remain available for obligation for one hundred (100) calendar days, unless otherwise specified, after the date on which the final ruling is made on the protest. A ruling is considered final on the date on which a decision is rendered on such an appeal or request for reconsideration has expired or the date on which a decision is rendered on such an appeal or request, whichever is later. As used in this paragraph, the term “protest” means any protest filed with the General Accounting Office (GAO) pursuant to 31 U.S.C. Chapter 35, Subchapter V. The term “protest” also means an action filed in court or under agency administrative procedures where that action involves:

  1. A challenge to:

1. A solicitation for a contract;

2. A proposed award of a contract;

3. An award of a contract; or

4. The eligibility of an offeror or potential offeror for a contract or of the contractor awarded the contract; and

B. The action delays or prevents an agency from awarding a contract or proceeding with the procurement.

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Guest Jason Lent

This isn't exactly relevant to the issue, but I encountered a similar situation except the protest was upheld and a new acquisition was conducted.

DoD 7000.14-R, Volume 3, Chapter 10 of the FMR, Section 100308 addresses Replacement Contracts.

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